Local Open Government Blog : Open Government Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

A recent article in USA Today is headlined “iPads Saving Cities Paper Costs.” The story focused on the cost savings that may result from the use of iPads for internal as well as external communications of cities. The difficulty, as noted by a spokesperson for the Virginia Coalition for Open Government, is the communications on iPads (or iPhones and similar devices) do not necessarily create a record. The Coalition spokesperson was quoted by USA Today as identifying a critical issue in many states, including Washington: “Records generated are subject to disclosure, but we don’t have a mechanism for getting those records from an iPad.”

The State of Washington, like many states, broadly defines public records. The conduct of government business, whether by letter, email, text or other electronic message, may constitute a public record and governments are responsible for maintaining policies to assure public access to such records. One approach to record management is a requirement that a copy of messages relating to government business be sent to a government server.

The Washington State Office of the Secretary of State, applying that state’s Public Records Act, reminds Washington’s governments that the conduct of government business using iPads or iPhones does give rise to a public record of that communication and is to be kept consistent with the government’s record retention policy.

For additional assistance in this regard, see the Secretary of State website at:
http://www.sos.wa.gov/archives/RecordsManagement/ and recordsmanagement@sos.wa.gov.

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In State v. Mendez, ___ Wn. App. ___ , 2010 WL 3259347 (August 19, 2010). The Yakima Herald sought as public records the sealed attorney billing records for public defenders in two related criminal cases, State v. Sanchez and State v. Mendez. The trial court denied both requests, but suggested a motion to unseal pursuant to GR 15 in Mendez because that case is closed. (The Sanchez public records case was argued to the Washington Supreme Court on March 9, 2010.)

The Mendez court held that GR 15 and the State constitutional command that justice be administered openly and permitted the newspaper to intervene and granted the newspaper’s motion to unseal the billing records of public defenders in a closed criminal case. But in doing so, the court carefully distinguished ongoing criminal cases, in which the right to a fair trial and the right to counsel may be impacted by releasing the billing time and expense records of a criminal defendant.

In releasing the billing records, however, the Court of Appeals did affirm the trial court’s redaction of time descriptions tending to reveal communications between the defendant and his appointed counsel (attorney client privilege) and those describing discovery and contacts with witnesses, and other attorney work product materials.
 

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As everyone who responds to public disclosure requests knows, compliance with the public records act is expensive. The Yakima Herald-Republic reports that the City of Yakima is now spending $500,000 per year on public record requests, including staff and outside attorney time. The article notes that Yakima officials generally support the goal of the public records act, but wish that the legislature would do something to cut down on fishing expeditions, especially requests by lawyers who use the public records act as an end run on pre-trial discovery costs. The number of requests to the City is on a pace to reach 400 requests in 2010, up from 284 requests in 2007.

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A City of Cleveland law requires daily reporting by pawnbrokers of their transactions. For years, that reporting has been through the filing of 3X5 cards (double sided). A lower court had held that such an "antiquated" system violated the Ohio public record laws. The Ohio Supreme Court disagreed and reversed. Like the Washington Public Records Act, the Court held that an Ohio city had no duty to maintain its records in a particular format, and was not required to create or provide access to nonexistent records. As a result, people seeking access to pawn records in Cleveland must play the cards they are dealt.

For more information, click HERE.

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On The Willis Report (FOX NEWS, July 29, 2010), a regular FOX Business News broadcast, host Gerri Willis reviewed some of the issues surrounding efforts to gather information about the salary of public officials in Bell, California. Gerri interviewed Steve DiJulio, a Foster Pepper lawyer and regular contributor to this blog. Steve discussed that many cities, before the Bell scandal, publicly posted salary information on their websites. He also discussed the process for gaining access to salary information of public officers and employees. Watch the interview here.  

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The Office of Attorney General has been asked to render an opinion regarding the application of the Washington Open Public Meetings Act (OPMA) to a particular issue involving the meetings of city council committees. The questions to the Attorney General relate to the impact of non-committee councilmembers attendance at a committee meeting.

To view a copy of the notice of the pending opinion request, click HERE.

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On July 16, 2010, the Wisconsin Supreme Court ruled that a public employee's personal e-mails are not public records under that State's Public Records Law. Like Washington, Wisconsin has broad public disclosure laws. Or, as noted by the Supreme Court, "[i]f Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State." But, the Court held personal e-mails "are not a part of government business," simply because they may be sent or received on a Wisconsin local government's e-mail and computer system.

This holding is similar to (and cites) a Washington Court of Appeals decision, Tiberino v. Spokane County, 103 Wn. App. 680, 13 P.3d 1104 (2000). There, the Washington court held the personal e-mails were "public records," and excessive personal e-mail use was a reason for discharge of a government employee. However, the personal e-mails were exempt from disclosure under Washington law. While the fact of excessive email use is of legitimate public concern, the actual content of the personal emails was not.

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[From IMLA News (Issue No. 12, July 07, 2010)]
In re The City of New York, No. 10-0237 (2d Cir. June 09, 2010) The plaintiffs were protesters and others who were arrested, detained, and fingerprinted after demonstrating at the 2004 Republican National Convention (RNC) in New York City. They brought suits under 42 U.S.C. § 1983 and state law, claiming that their arrests and treatment at the hands of the New York Police Department (NYPD) violated their rights. During pretrial discovery proceedings, the plaintiffs brought a motion to compel the City to produce roughly 1,800 pages of confidential reports created by undercover NYPD officers who were investigating potential security threats in the months before the RNC. The City opposed the motion to compel by asserting, among other things, that the documents were protected from disclosure by the law enforcement privilege. After the court 7 below granted the motion to compel, the City filed a petition for a writ of mandamus, seeking relief from the order to compel.

The Second Circuit granted the motion and vacated the order of the court below. The petition presented ― novel and significant question[s] of law ... whose resolution [would] aid in the administration of justice, as the court had not previously addressed ― the circumstances in which the law enforcement privilege must yield to a party‘s need for discovery. The City had also shown that its right to the writ was ― clear and indisputable, and, in the circumstances of the case, it did not have other adequate means to challenge the order. Allowing the disclosure of the reports on an ― attorneys‘ eyes only basis or by requiring filing under seal ― would provide insufficient protection for the confidential law enforcement information at issue.

The party asserting the law enforcement privilege had the burden of showing that the privilege applied. The law enforcement privilege ― clearly applie[d] to the documents here. The Field Reports, even in their redacted form, contain detailed information about the undercover operations of the NYPD. This information clearly relates to law enforcement techniques and procedures.‘ To determine whether the privilege was to give way, a court was to balance ― [t]he public interest in nondisclosure against ― the need of a particular litigant for access to the privileged information, but starting with a ― strong presumption against lifting the privilege. The plaintiffs‘ need for the reports did not overcome this ― strong presumption against disclosure, as nothing in those reports in any way undermined, contradicted, or cast doubt upon the information already provided by the City in certain ― End User Reports. Event ―if we were to agree with plaintiffs‘ claim that the City is using the [reports] as a sword‘ – that is, selectively disclosing Reports helpful to its defense – we would conclude ... that it is not unfair for the law enforcement privilege to protect the [reports] because the information in the [reports] does not contradict or undermine the information in the End User Reports. See http://tinyurl.com/365zzuc.

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In an 8-1 decision, the Supreme Court upheld the Ninth Circuit’s dismissal of a facial challenge to the release of signatures on an initiative petition to overturn Washington’s “Everything but Marriage Act.” Doe v. Reed 561 U.S. ____ (June 24, 2010)

Chief Justice Roberts wrote the majority opinion in which five other justices joined and in which two other justices concurred. Justice Thomas dissented. 

Roberts pointed out that “the PRA is not a prohibition on speech, but instead a disclosure requirement. ‘[D]isclosure requirements may burden the ability to speak, but they . . . do not prevent anyone from speaking.’” Doe v. Reed Slip opinion at 7. But Roberts also pointed out that the Court’s decision dealt only with the facial challenge to the release, not with an “as applied” standard related to this particular petition, which could still be asserted by the plaintiffs in the District Court.

Justice Scalia, with his characteristic reference to history, concurred with the judgment and wrote to point out that the signers of the petition were engaging in a legislative act and that legislative actions in the United States were consistently considered to be actions taken in public. Even voting by the public was traditionally a public act, and secret ballot voting had only come to be generally accepted in the United States in the 1890s when most states adopted the Australian model of voting by secret ballot. Scalia noted that there was no constitutional basis for saying that a state could not decide to keep the identity of petition signers secret, but “It may be a bad idea to keep petition signatures secret. . . . Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” Scalia, concurrence at 10.

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